Military and Emergency Services Leave Law Summaries

Florida's military leave law is codified in the Florida Statutes at Title X, Chapter 110, Part II (for full text, see Wages-Hours 10-58,003 ), and Chapter 115 (for full text, see Wages-Hours 10-58,004 et seq. ); and at Title XVII, Chapter 250, Part I (for full text, see Wages-Hours 10-58,001 ).

The Florida Uniformed Servicemembers Protection Act is located in the Florida Statutes at Ch. 250, Pt. IV.

The Florida Disaster Volunteer Leave Act is also located in Chapter 110 (for full text, see Wages-Hours 10-58,201 ).

DEFINITIONS

"Active military service" is defined as active duty in the Florida defense force or federal service in training or on active duty with any branch of the Armed Forces or Reservists of the Armed Forces, the Florida National Guard, the Coast Guard of the United States, and service of all officers of the United States Public Health Service detailed by proper authority for duty with the Armed Forces, and includes the period during which a person in military service is absent from duty on account of sickness, wounds, leave, or other lawful cause (Sec. 115.08(1), as amended by Ch. 2003-72 (S. 1098), L. 2003, effective June 2, 2003).

COVERAGE

Both private and public employers are covered under Florida's military leave law.

Florida Uniformed Servicemembers Protection Act. --Florida law provides certain protections to members of the U.S. Armed Forces, the U.S. Reserve Forces, and the Florida National Guard in various legal proceedings and contractual relationships. In addition to these state provisions, federal law also contains protections, such as those provided in the Soldiers' and Sailors' Civil Relief Act (SSCRA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA) (see EQUAL EMPLOYMENT OPPORTUNITY 8560 et seq. ), that are applicable to members in every state even though such provisions are not specifically identified under state law (Sec. 250.82, as added by Ch. 2003-72 (S. 1098), L. 2003, effective June 2, 2003).

If any other provision of law conflicts with SSCRA, USERRA, or the Florida Uniformed Servicemembers Protection Act, the provisions of SSCRA, USERRA, or the Florida Uniformed Servicemembers Protection Act, whichever is applicable, shall control (Sec. 250.83, as added by Ch. 2003-72 (S. 1098), L. 2003, effective June 2, 2003).

WHAT THE EMPLOYER MUST DO

Military leave

Discrimination. --Any person who seeks or holds an employment position may not be denied employment or retention in employment, or any promotion or advantage of employment, because of any obligation as a member of a reserve component of the Armed Forces (Sec. 250.481, as amended by Ch. 2003-68 (S. 684), L. 2003).

If a member of the Florida National Guard is ordered into state active duty, a private or public employer, or an employing or appointing authority of this state, its counties, school districts, municipalities, political subdivisions, vocational or technical schools, community colleges, or universities, may not discharge, reprimand, or in any other way penalize such member because of the member's absence by reason of state active duty (Sec. 250.482, as amended by Ch. 2003-68 (S. 684), L. 2003).

Public employers. --The granting of any leave of absence for full-time state employees, with or without pay, must be in writing and approved by the head of the public agency. An employee who is granted leave of absence with or without pay is an employee of the state while on such leave and must be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence. The agency head and the employee may agree in writing to other conditions and terms under which the leave is to be granted (Sec. 110.219).

Leave for training. --All officers or employees of the state, its counties, municipalities or political subdivisions who are commissioned reserve officers or reserve enlisted personnel in the United States military or naval service or members of the National Guard are entitled to leaves of absence from their respective duties, without loss of vacation leave, pay, time, or efficiency rating, on all days during which they are engaged in training ordered under the provisions of the United States military or naval training regulations for such personnel when assigned to active or inactive duty (Sec. 115.07(1)).

Leaves of absence granted are not to exceed 17 working days in any one annual period. Administrative leaves of absence for additional or longer periods of time for assignment to duty functions of a military character are to be without pay an are to be granted by the employing or appointing authority of any state, county, municipal, or political subdivision employee and when granted are to be without loss of time or efficiency rating (Sec. 115.07(2)).

With respect to any officer or employee whose working day consists of a shift measured in hours, each such 12-hour shift or less will equal one working day leave of absence. All other shifts over 12 hours and up to 24 hours will equal two working days leave of absence (Sec. 115.07(3)).

When an employee's assigned employment duty conflicts with ordered active or inactive duty training, it is the responsibility of the employing agency of the state, county, municipal, or political subdivision to provide a substitute employee, if necessary, for the assumption of such employment duty while the employee is on assignment for such training (Sec. 115.07(4)).

It is the intent of the Florida Legislature that the state, its counties, and its municipalities and political subdivisions grant leaves of absence for active or inactive training to all employees who are members of the United States Reserve Forces or the National Guard, to ensure the state and national security (Sec. 115.07(5)).

Active service. --Active military service begins with the date of entering upon active military service and ends with death or a date 30 days immediately next succeeding the date of release or discharge from active military service, or upon return from active military service, whichever occurs first (Sec. 115.08).

Governor's resolution. --In the wake of the September 11, 2001, terrorist attacks, Governor Jeb Bush and his Cabinet passed a resolution requiring state agencies to give employees full pay in addition to their military pay for the first 30 days of active duty and also to fill any pay gap after that (September 25, 2001).

Public officials. --All officials of Florida, its counties and municipalities or political subdivisions, including district school and community college officers, which officials are also servicemembers in the National Guard or a reserve component of the Armed Forces of the United States, shall be granted leave of absence from their respective offices and duties to perform active military service, the first 30 days of any such leave of absence to be with full pay (Sec. 115.09, as amended by Ch. 2003-72 (S. 1098), L. 2003, effective June 2, 2003).

In the event that the term of office of an official on leave expires during leave, the office of that official is to be filled by election or appointment as may be required by law. However, the official on leave maintains the right to qualify and become a candidate for such office and, if nominated or elected, has the same rights accorded to an incumbent (Sec. 115.11(1)).

Should military leave of an elected municipal officer last more than 60 days, the temporarily unoccupied position created by such leave may be filled by majority vote of the remaining members of the legislative body of the municipality. This temporary appointment terminates upon the elected official's return from active military service or upon the expiration of the official's original term of office, whichever occurs first (Sec. 115.11(2)).

All employees of the state, the several counties of the state, and the municipalities or political subdivisions of the state shall be granted leave of absence under the terms of this law; upon such leave of absence being granted, said employee shall enjoy the same rights and privileges as are hereby granted to officials under this law, insofar as may be, including, without limitation, receiving full pay for the first 30 days. Notwithstanding Sec. 115.09 (just above), the employing authority may supplement the military pay of its officials and employees who are reservists called to active military service after the first 30 days in an amount necessary to bring their total salary, inclusive of their base military pay, to the level earned at the time they were called to active military duty. The employing authority shall continue to provide all health insurance and other existing benefits to such officials and employees as required by USERRA (Sec. 115.14, as amended by Ch. 2003-72 (S. 1098), L. 2003, effective June 2, 2003).

The provisions of USERRA apply in this state and the refusal of any state, county, or municipal official to comply therewith shall subject him or her to removal from office (Sec. 115.15, as amended by Ch. 2003-72 (S. 1098), L. 2003, effective June 2, 2003).

War-time leave. --Any county or state official may be granted a leave of absence from office to serve in the volunteer forces of the United States, or in the National Guard of the state, or in the regular Army or Navy of the United States, when called into active service of the United States during war between the United States and a foreign government (Sec. 115.01).

When an officer volunteers or is called into the service of the United States during war, the Governor, upon application being made by such officer, will grant the officer a leave of absence for military service. Such leave is not to extend beyond the officer's term of office and, in such event, the office is to be filled by election at the expiration of the term (Sec. 115.02).

Before applying for a leave of absence, officers are to appoint a capable and competent deputy to take over and perform the duties of the office, and the bond of such officer is in full force during the remainder of the term of office, in addition to which such deputy is required to furnish good and sufficient bond in a sum of not more than one-half of the amount of the bond of the officer appointing the deputy, for the faithful performance of such duties. This provision applies only to officers who are now authorized by law to appoint deputies (Secs. 115.03 and 115.04).

Upon return from military leave in the service of the United States, officers are to immediately enter into the duties of office for the remainder of their elected terms (Sec. 115.06).

Florida National Guard. --Any officer or employee of the state, of any county or school district, or of any municipality or political subdivision of the state, who is a member of the Florida National Guard is entitled to a leave of absence from the employee's respective duties, without loss of pay, time, or efficiency rating, on all days during which the employee is engaged in active state duty for a named event, declared disaster, or operation. However, a leave of absence without loss of pay granted under this section may not exceed 30 days for each emergency or disaster, as established by executive order (Sec. 250.48, as amended by Ch. 2003-68 (S. 684), L. 2003).

Emergency services leave

Administrative leave for disaster service volunteers. --Under the Florida Disaster Volunteer Leave Act, "state agency" means any official, officer, commission, board, authority, council, committee or department of the executive branch of state government (Sec. 110.120, as amended by Ch. 2001-352 (S. 40), L. 2001, effective November 30, 2001).

"Disaster" includes disasters designated at level II and above in the American National Red Cross regulations and procedures (Sec. 110.120, as amended by Ch. 2001-352 (S. 40), L. 2001, effective November 30, 2001).

An employee of a state agency who is a certified disaster service volunteer of the American Red Cross may be granted a leave of absence with pay for not more than 15 working days in any 12-month period to participate in specialized disaster relief services for the American Red Cross. The leave of absence may be granted upon the request of the American Red Cross and upon the approval of the employee's employing agency. An employee granted disaster service volunteer leave is not an employee of the state for purposes of workers' compensation. Leave under this act may be granted only for services related to a disaster occurring within the boundaries of the State of Florida, except that, with the approval of the Governor and Cabinet, leave may be granted for services in response to a disaster occurring within the boundaries of the United States (Sec. 110.120, as amended by Ch. 2001-352 (S. 40), L. 2001, effective November 30, 2001).

Employees who are members of a volunteer fire department, police auxiliary or reserve, civil defense unit, or other law enforcement-type organization will, if appropriate, be granted administrative leave upon approval by the agency head when the employees are called on as members of these organizations to perform duties in times of civil disturbances, riots and natural disasters, including employees who are members of the Civil Air Patrol, or Coast Guard Auxiliary, who are called upon to assist in emergency search and rescue missions. Leave may not exceed two days on any one occasion.

In accordance with the Florida Disaster Volunteer Leave Act, an employee of a state agency who is a certified disaster service volunteer of the American Red Cross may be granted a leave of absence with pay for not more than 15 working days in any 12-month period to participate in specialized disaster relief services for the American Red Cross. This leave of absence may be granted only upon the request of the American Red Cross and with the approval of the employee's employing agency. Leave will be granted only for services related to a disaster occurring within the boundaries of the State of Florida (Fla AdminCode, Sec. R 60K-5.032 (f)).

ENFORCEMENT

Civil action. --If the Adjutant General certifies that there is probable cause to believe there has been a violation of Sec. 250.482, an employee who has been employed for a period of at least one year prior to being ordered into state active duty so injured by the violation may bring civil action against the employer in a court of competent jurisdiction of the county in which the alleged violator resides or has its principal place of business, or in the county in which the alleged violation occurred. Upon adverse adjudication, the employer is liable for actual damages or $500, whichever is greater. The prevailing party is entitled to recover reasonable attorney's fees and court costs. The certificate of probable cause will not be issued until the Adjutant General, or his or her designee, has investigated the issues. Employers must cooperate with the Adjutant General in the investigation (Sec. 250.482, as amended by Ch. 2003-68 (S. 684), L. 2003).

RECORDKEEPING

Each public agency must keep a complete and accurate record of authorized, approved leave. The ultimate responsibility for the accuracy and proper maintenance of leave records is with the agency head (Sec. 110.219).

This is a summary of Military and Emergency Services Leave Laws in Florida.